Law Commons^™

The Impact Of Climate Change On Virginia's Coastal Areas, Jonathan L. Goodall, Antonio Elias, Elizabeth Andrews, Christopher "Kit" Chope, John Cosgrove, Jason El Koubi, Jennifer Irish, Lewis L. Lawrence Iii, Robert W. Lazaro Jr., William H. Leighty, Mark W. Luckenbach, Elise Miller-Hooks, Ann C. Phillips, Henry Pollard V, Emily Steinhilber, Charles Feigenoff, Jennifer Sayegh

Faculty Publications

As part of HJ47/SJ47 (2020), the Virginia General Assembly directed the Joint Commission on Technology and Science (JCOTS) to study the “safety, quality of life, and economic consequences of weather and climate-related events on coastal areas in Virginia.” In pursuit of this goal, the commission was to “accept any scientific and technical assistance provided by the nonpartisan, volunteer Virginia Academy of Science, Engineering, and Medicine (VASEM). VASEM convened an expert study board with representation from the Office of the Governor, planning district commissions in coastal Virginia, The Port of Virginia, the Virginia Economic Development Partnership, state universities, private industry, and …

The Federal Sentencing Guidelines: Some Valedictory Reflections Twenty Years After Apprendi, Frank O. Bowman Iii

Faculty Publications

This Article reflects on the author's professional experience and intellectual evolution in relation to federal sentencing policy and the Federal Sentencing Guidelines before and after the Supreme Court's decision in Apprendi v. New Jersey.

The account begins with the author's first encounters with the Guidelines when he was a zealous Assistant U.S. Attorney, continues through his transition to teacher, scholar, policy advocate, and occasional sentencing consultant, and concludes with the author pessimistic about the prospects of meaningful federal sentencing reform.

The utility, if any, of these musings will lie partly in the fact that the author has been deeply involved …

Beyond “Children Are Different”: The Revolution In Juvenile Intake And Sentencing, Josh Gupta-Kagan

Faculty Publications

For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases—when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can be prosecuted …

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Publications

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any "person" who violates federal rights. The U.S. Supreme Court has long held that "person" excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion--in legalese, Section 1983's nonabrogation of sovereign immunity--along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983's enactment, the caselaw …

Shakespeare In The Courts, Douglas E. Abrams

Faculty Publications

This article continues the theme of recent “Writing It Right” articles in the Journal of the Missouri Bar. These articles describe how federal and state judges today frequently accent their opinions’ substantive or procedural rulings with references to cultural markers that can resonate with the advocates, parties, and judges who comprise the opinions’ readership. The courts’ broad array of cultural references demonstrates versatility. Some of my early articles in the Journal profiled judicial opinions that referenced terminologies, rules, and traditions of baseball, football, and other sports. Together these sports’ mass audiences help define American culture.

Later my Journal articles profiled …

Teaching Leadership In American Law Schools: Why The Pushback?, Martin H. Brinkley

Faculty Publications

In September 2020, I participated in a panel discussion with several other deans at Baylor Law School’s 2020: Vision for Leadership Conference. The subject was “Leadership Programming in Law Schools.”

My assignment was to account for why teaching leadership might meet with resistance from inside law schools, despite widespread agreement that lawyer-leaders have always been and are always likely be critical to the survival of American democracy, as well as our fellow citizens’ hopes of living meaningful, satisfying lives.

This essay endeavors to memorialize and expand on the views I expressed on the panel.

On The Cusp Of The Next Medical Malpractice Insurance Crisis, Philip G. Peters Jr.

Faculty Publications

Medical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a “soft” insurance market, we are now on the cusp of yet another malpractice insurance crisis.

How can profits be in peril if claims have dwindled and payouts are historically low?
Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums.

The industry’s financial statistics today …

The Odious Intellectual Company Of Authority Restricting Second Amendment Rights To The “Virtuous”, Royce De R. Barondes

Faculty Publications

To the woes of the victims of American over-criminalization, we can add deprivation of the suitable tools for self-defense during national emergency and civil unrest. Federal law disarms “unlawful users” of controlled substances (including medical marijuana), and imposes a permanent firearms ban on substantially all those with prior felony convictions. A notable exception is made for white-collar criminals with felony violations of antitrust and certain business practice statutes.

The constitutionality of these restrictions typically is founded on the view that one is tainted as “non-virtuous” for any serious criminal conviction, which includes any felony conviction. Using extensive sampling, this article …

Beyond Stress Reduction: Mindfulness As A Skill For Developing Authentic Professional Identity, Richard C. Reuben

Faculty Publications

Mindfulness is often touted in the legal field for its capacity to help reduce stress and improve focus through the management of distractions. However, the potential contributions of mindfulness practice for the legal profession extend beyond stress reduction' and include great promise for helping lawyers understand who they are as members of the legal profession - that is, their professional identity. This knowledge is empowering because it allows lawyers facing ethical quandaries to make choices that better align their professional values with their personal values, rather than aligning their personal values with professional values and societal expectations of success. In …

Book Review: Social Media And Democracy: The State Of The Field And Prospects For Reform, Cynthia W. Bassett

Faculty Publications

Social Media and Democracy illuminates the empirical social science research done to date to tease apart the effects social media has had on representative democracies. It is a collection of essays by academic social scientists researching the intersection of social media and democracy from a variety of angles.

Rehabilitating Charge Bargaining, Nancy Amoury Combs

Faculty Publications

Nobody likes plea bargaining. Scholars worldwide have excoriated the practice, calling it coercive and unjust, among other pejorative adjectives. Despite its unpopularity, plea bargaining constitutes a central component of the American criminal justice system, and the United States has exported the practice to a host of countries worldwide. Indeed, plea bargaining has even appeared at international criminal tribunals, created to prosecute genocide and crimes against humanity--the gravest crimes known to humankind. Although all forms of plea bargaining are unpopular, commentators reserve their harshest criticism for charge bargaining because charge bargaining is said to distort the factual basis of the defendant's …

The Connecticut Second Chance​ ​Pardon​ ​Gap, Colleen Chien, Hithesh Bathala, Prajakta Pingale, Evan Hastings, Adam Osmond

Faculty Publications

Connecticut Law Chapter 961a Section 54-142a, Chapter 960a Sections 54-76o and 54-130a allows individuals whose criminal records meet certain conditions to apply for pardons of their past criminal convictions. Proposed Bill SB 403,2 Connecticut’s “Clean Slate” Act, likewise would provide for automatic erasure of the records of a subset of individuals who can apply for pardons. Ascertaining, then applying existing pardons law and proposed “Clean Slate” law to a sample of 309,827 criminal histories of individuals with Connecticut convictions records, and then extrapolating to the estimated population of 450K individuals in the state with convictions,3 we estimate the share and …

The Lost Promise Of Disability Rights, Claire Raj

Faculty Publications

Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students’ affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws—the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504).

Courts too often overlook the affirmative obligations contained in these two disability rights …

Eight Strategies That Enhance Legal Writing, Douglas E. Abrams

Faculty Publications

A few years ago, I spoke about legal writing at an annual forum of Missouri’s appellate judges, held at the University of Missouri School of Law in Columbia. The hour-long presentation advanced eight strategies that enable judges and practicing lawyers to sharpen their writing. These eight strategies appear below in this article.

A Corporate Law Rationale For Reparations, Susan S. Kuo, Benjamin Means

Faculty Publications

Should the United States pay reparations to African Americans? A majority of Americans object that they are not personally responsible for slavery or Jim Crow. The objection is rooted in the principle of ethical individualism, which holds that people can be blamed only for their own actions.

This Article contends that the ethical individualism objection to reparations is misplaced because it assumes that what matters is the culpability of each citizen. We argue that, like a corporation, the United States is a legal person. Consequently, seeking reparations from the United States does not turn on the guilt of its citizens …

The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Faculty Publications

This Essay offers an unconventional approach to deterring prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady v. Maryland, Batson v. Kentucky, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors, it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is …

The Costs Of Dissent: Protest And Civil Liabilities, Timothy Zick

Faculty Publications

This Article examines the civil costs and liabilities that apply to individuals who organize, participate in, and support protest activities. Costs ranging from permit fees to punitive damages significantly affect First Amendment speech, assembly, and petition rights. A variety of common law and statutory civil claims also apply to protest activities. Plaintiffs have recently filed a number of new civil actions negatively affecting protest, including "negligent protest," "aiding and abetting defamation," "riot boosting," "conspiracy to protest," and "tortious petitioning." The labels are suggestive of the threats these suits pose to First Amendment rights. All of these costs and liabilities add …

The Opioid Doctors: Is Losing Your License A Sufficient Penalty For Dealing Drugs?, Adam M. Gershowitz

Faculty Publications

Imagine that a medical board revokes a doctor's license both because he has been peddling thousands of pills of opioids and also because he was caught with a few grams of cocaine. The doctor is a family physician, not a pain management specialist. Yet, during a one-year period he wrote more than 4,000 prescriptions for opioids--roughly eighteen scripts per day. Patients came from multiple states and from hundreds of miles away to get oxycodone prescriptions. And the doctor prescribed large quantities of opioids--up to 240 pills per month--to patients with no record of previously needing narcotic painkillers. Both federal and …

Comments To The National Strategy For Expanding American Innovation, Colleen Chien, Ernest Fok

Faculty Publications

The United States Patent and Trademark Office (USPTO) sought input for its National Strategy for Expanding American Innovation to build a more demographically, geographically, and economically inclusive innovation ecosystem. Students in Professor Colleen Chien’s Patent Law course submitted 13 comments on how to make innovation more representative of the United States. This document contains 13 comments that draw heavily from personal and professional experience, and highlights the diversity in Santa Clara Law’s patent course. Here are excerpts:

• Erik Perez and Grant Wanderscheid, drawing from their own undergraduate and graduate experiences in science and engineering, recommend a “shift towards achievement …

The Importance Of Viewing Property As A System, Lynda L. Butler

Faculty Publications

Can--or should--the American property system adapt to curb the excesses inherent in the dominant form of capitalism? Those extolling the virtues of privatization of resources would likely answer in the negative. Such a response would ignore the core functions and infrastructure of the American institution of property. This Article discusses the structure of property that enables property law to evolve over time, reacting to changing conditions, recognizing informal customs and usages, and otherwise taking into account important feedbacks. It explains how property provides an ordering system of concepts and principles that define and govern relations between a society and its …

The Establishment Clause: Its Original Public Meaning And What We Can Learn From The Plain Text, Carl H. Esbeck

Faculty Publications

Modern times in church-state relations began in 1947 with the Supreme Court’s decision in Everson v. Board of Education. The justices in both the majority and dissent said they were interpreting the Establishment Clause based on the intent of the founding generation. However, rather than looking to Congress’s lawmaking in the summer of 1789 that led to the First Amendment, the justices relied on the Virginia disestablishment from four years prior, as well as the efforts of just two statesmen, James Madison and Thomas Jefferson.

For the next half century, the High Court’s search was for events and prominent …

Rethinking Grid Governance For The Climate Change Era, Shelley Welton

Faculty Publications

The electricity sector is often appropriately called the linchpin of efforts to respond to climate change. Over the next few decades, the U.S. electricity sector will need to double in size to accommodate electric vehicles, at the same time that it transforms to run entirely on clean energy. To drive this transformation, states are increasingly adopting 100% clean energy targets. But fossil fuel corporations are pushing back, seeking to maintain their structural domination of the U.S. energy sector. This article calls attention to one central but under-scrutinized way that these companies impede the clean energy transition: Incumbent fossil fuel companies …

Pure Privacy, Jeffrey Bellin

Faculty Publications

n 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy's appeal has grown beyond those authors' wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means.

The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, …

Trademarks In Conversation: Assessing Genericism After Booking.Com, Laura A. Heymann

Faculty Publications

It is a fundamental principle of U.S. trademark law that to serve as a trademark, a word or phrase must “indicate the source” of the goods or services with which it is associated and, conversely, that a term that is understood to be the common name of a good or service is “generic” and cannot be protected as a trademark. Yet it still seems difficult to determine exactly what each concept means, particularly when the actual “source” of any goods or services might be opaque to consumers.

In part, this difficulty comes from the fact that status as a trademark …

The "Innocence" Of Bias, Osamudia James

Faculty Publications

No abstract provided.

Risky Education, Osamudia James

Faculty Publications

No abstract provided.

The Political Economy Of Pandemic Pods, Osamudia James

Faculty Publications

No abstract provided.

An Auditing Imperative For Automated Hiring, Ifeoma Ajunwa

Faculty Publications

The goal of this Article is neither to argue against or for the use of automated decision-making in employment, nor is it to examine whether automated hiring systems are better than humans at making hiring decisions. For antidiscrimination law, the efficacy of any particular hiring system is a secondary concern to ensuring that any such system does not unlawfully discriminate against protected categories. Therefore, the aim is to suggest collaborative regulatory regimes for automated hiring systems that will ensure that any benefits of automated hiring are not negated by (un)intended outcomes, such as unlawful discrimination on the basis of protected …

Forum Selection Clauses, Non-Signatories, And Personal Jurisdiction, John F. Coyle, Robin J. Effron

Faculty Publications

Who is bound by a forum selection clause? At first glance, the answer to this question may seem obvious. It is black letter law that a person cannot be bound to an agreement without her consent. In recent years, however, courts have not followed this rule with respect to forum selection clauses. Instead, they routinely enforce these clauses against individuals who never signed the contract containing the clause. Courts justify this practice on the grounds that it promotes litigation efficiency by bringing all of the litigants together in the chosen forum. There are, however, problems with enforcing forum selection clauses …